Report finds prosecutorial misconduct in Bay Area

Prosecutorial misconduct taints the entire judicial system. Even though our system says all defendants are “PRESUMED INNOCENT UNTIL PROVEN GUILTY” defendant’s are already looked at as if they have done something wrong just because they have been arrested. Judges, defense attorneys, society and prosecutors themselves should hold prosecutors to a high standard when prosecuting people. In a recent jury trial of mine, the prosecutor failed to comply with discovery and turn over information on a witness which is well settled statutory and United States Supreme Court law. This should never be acceptable.

Bay Area prosecutors committed misconduct last year in 18 cases serious enough to attract notice from state and federal courts, according to a report released this month.

In four of those cases — including two in Santa Clara County — the courts either set aside the sentence or conviction, barred evidence or declared a mistrial, according to the report by the Northern California Innocence Project. Such misconduct, including concealing evidence favorable to a defendant, can result in costly retrials or lengthy legal battles even if the conviction ultimately is upheld.

“Our research shows prosecutorial misconduct continues throughout the state in a broad range of prosecutions ranging from burglary to rape to murder,” said Maurice Possley, co-author of the study.

But critics, including some prosecutors named in the study, claim the Innocence Project fails to carefully research the cases in its haste to skewer deputy district attorneys.

“Like Holocaust deniers and people who believe we never went to the moon, they have an agenda, and no fact is ever going to get in their way,” said San Mateo County prosecutor Alfred Giannini, who the study describes as a “multiple offender.”

Giannini was cited last year for misconduct in a murder trial that led to the conviction being set aside, according to the study. It was the third case in which courts have found his conduct has led to a reversal or mistrial since 1999. He disputes either the courts’ findings in all three cases or the
Innocence Project’s summary of those opinions. Possley says the aim of the Innocence Project, based at Santa Clara University’s law school, is not to lambaste prosecutors but to spur reform. If anything, he said, the study undercounts the actual problem because it does not include trial-level

findings of misconduct that are not reflected in appellate court rulings and would have to be researched by searching every case file in every courthouse in the state.

Misconduct ranges from small technical errors to presenting false evidence, engaging in improper examination, making false and prejudicial arguments, violating defendants’ Fifth Amendment right to silence and discriminating against minorities in jury selection.

Statewide, the study shows courts found prosecutors committed misconduct last year in 102 cases, 26 of which required courts to overturn the conviction or otherwise modify the outcome. In the other 76 cases, the courts upheld the convictions, finding that the misconduct didn’t alter the fundamental fairness of the trial. The Innocence Project disputes the “harmless error” findings in some of the cases, noting some mistakes were constitutional violations, not just technical errors.

The number of misconduct findings increased last year — up from 61 statewide in 2009, 11 of which involved Bay Area cases. In three of those local 2009 cases, the misconduct was deemed “harmful” and the sentences or convictions modified. But it’s unclear whether the increase last year is due to
more brazen misconduct or better monitoring by the courts.